Ruling from USPTO Invalidates All Claims Used to Threaten Podcasters
eff.org
eff.org
It has interviews with the patent holder, and it's amazing to hear his perspective. (Which I do not agree with.)
412 - http://www.npr.org/blogs/money/2012/10/23/163480928/episode-...
551 - http://www.npr.org/blogs/money/2014/07/09/329895088/episode-...
Side topic, but I really wish Planet Money would look into medical re-patenting. Growing up I needed albuterol inhalers occasionally and I remember them costing less than $10, but recently my kid needed one and it was $60 with copay (over $100 without insurance). That's when I found this article: http://www.nytimes.com/2013/10/13/us/the-soaring-cost-of-a-s...
TL;DR - Inhalers use CFC's (ozone hole making), but scientists and environmentalists recommended an exception for them when banning CFC's because the amounts were so tiny and the medical benefits so huge. The pharmaceutical industry decided to lobby against the exception so they could reformulate the inhaler and introduce a new patent - and make billions on a 30+ year old drug.
Its unreasonable to expect a publicly traded company to do anything other than chase profits the best way they can.
> Its unreasonable to expect a publicly traded company to do anything other than chase profits the best way they can.
And that attitude is why we can't have nice things. That would be what's known as "enabling." How about, "It's unreasonable to expect a beer company to do anything other than sell as much alcohol as they can, however they can, to whomever they can." Or, "It's unreasonable to expect an oil company to do anything other than ship and sell as much oil as they can as cheaply as they can."
No. Companies, publicly traded or not, are not mindless automatons, inhumanly calculating the optimal methods to extract as much profit as possible, even though they do seem that way. Companies are comprised of people, people who are a part of the society in which their company does business. Therefore they have--should have--the responsibility to behave ethically to society, not merely their shareholders. And even besides that, shareholders' ultimate interests are not served if their companies behave in ways that are destructive to the societies in which they live.
I don't know where this idea that "companies are required or expected to make as much profit as legally possible" came from, but it's 1) untrue, and 2) morally and ethically wrong, regardless of #1. Please stop enabling this behavior by spreading this incorrect and just plain wrong idea.
Unless the destruction occurs outside of the realm (spatial or temporal) of the shareholders, in which case the destruction can rightfully be modeled as an externality and ignored.
I don't know where this idea that "companies are required or expected to make as much profit as legally possible" came from
Started with Dodge v. Ford Motor Co.:
http://en.wikipedia.org/wiki/Dodge_v._Ford_Motor_Co.
This was somewhat superseded by Shlensky v. Wrigley:
http://en.wikipedia.org/wiki/Shlensky_v._Wrigley
This in turn is arguably superseded by eBay v. Newmark:
http://www.litigationandtrial.com/2010/09/articles/series/sp...
Please stop enabling this behavior by spreading this incorrect and just plain wrong idea.
It's more dangerous to assume that corporations can be held to task than it is to assume that they are amoral profit-seeking entities. Only in the former case are you unpleasantly surprised if you're wrong.
You are missing the point just as the gp did. I never said that corporations can be held to task for such things.
I'm talking about what they _should_ do, i.e. right vs. wrong, i.e. morality. And such hypothetical destruction cannot _rightfully_ be ignored, because to do so is _morally wrong._
_That_ is the point. By continuing to miss it you are further illustrating the problem. Please wake up.
What you want to claim is that corporations should view their actions morally, and what everyone is telling you is that no they shouldn't. You present (as a sibling comment) the notion that a company given a choice between the "wrong but profitable" and the "right but less profitable" should choose the "right" thing.
And we're telling you, we're all telling you, that you cannot evaluate a corporation through such a calculus!
Is the corporation going to Heaven or Hell because of how it's lived its "life"? No. Is the corporation going to have more friends because it's been "nice"? No. Is the corporation going to have better credit because, goshdarnit, it really tried to "help"? No. Are consumers going to change their buying habits because of what the company has done to its workers? Probably not--just look at Nike.
Look, I dig the whole rage against the machine thing you're going for--I've been there myself. "There's morality in the world, goddamnit, there's right and wrong! We can't let the corporations run amok and ruin our nation and communities! This is a democracy! This is America!" you cry.
There is no America. There is no democracy. There is only Facebook and Google and Apple and IBM, Haliburton, GE, Tata Group, Phillip Morris, Alibaba, Mitsubishi. Those are the nations of the world today--or at least as far back as Network!
Is it monstrous? Absolutely. Is it something we should find an alternative to? Certainly. But is it something to which it is useful to apply human morality to? No, and it never will be--you must engage the beast where it lives, on its terms.
What part of "businesses are comprised of and run by human beings" don't you understand? What part of "businesses have legal, ethical, and moral responsibilities to government and society" don't you understand? These are not wishes, these are reality.
> Do you blame a cat for catching a mouse? Do you blame a cruise missile for destroying a target? Do you blame a tornado for eviscerating a house? There are things to which the lens of morality offers very little.
Cats are not human beings, they are animals. They cannot think, speak, or reason.
Cruise missles are not human beings, they are machines.
Tornadoes are hot human beings, they are weather phenomena.
What is wrong with you? Are you just trolling or do you really think like this?
> And we're telling you, we're all telling you, that you cannot evaluate a corporation through such a calculus!
Certainly I can. And I will. And this is nothing new. This is why there are laws regulating corporations in a million ways, from financial regulations to the EPA to the FCC. For example, if morality had no bearing on corporations' actions, there would be no laws against insider trading, or price/wage fixing, monopoly abuse, etc. (And you can cry "ethics, not morality!" all you want, but ethics are ultimately based on morals. The principle of right vs. wrong remains.)
Where do you come up with this idea that corporations can do whatever they want in a mindless pursuit of profit? This is not the case, it never has been, and it continues to become less the case as more and more laws and regulations are enacted.
> There is no America. There is no democracy. There is only Facebook and Google and Apple and IBM, Haliburton, GE, Tata Group, Phillip Morris, Alibaba, Mitsubishi. Those are the nations of the world today--or at least as far back as Network!
Oh please. There is some truth to that idea, but it is not done, as you seem to think.
> Is it monstrous? Absolutely. Is it something we should find an alternative to? Certainly. But is it something to which it is useful to apply human morality to? No, and it never will be--you must engage the beast where it lives, on its terms.
If everyone thought like this, the United States (and many other nations) wouldn't even exist. It's because of those who had the courage to stand up and fight for change that we are having this conversation today.
Your attitude is useless. It is part of the problem. We need principled leadership that stands up for what is right, regardless of the status quo (or the perceived one).
If you look at the history of such regulations, they're typically more about protecting the assets of the rich than they are about helping anyone else. They're still somewhat rampant--just look at Google and Apple cartel behavior re: engineer hiring, or the continual monopoly abuse of Comcast and AT&T.
It's only when the behavior becomes so egregious that it causes trouble for other stakeholders will legislators finally get around to stepping in.
Where do you come up with this idea that corporations can do whatever they want in a mindless pursuit of profit? This is not the case, it never has been, and it continues to become less the case as more and more laws and regulations are enacted.
History. Dutch East India Company, United Fruit Company, Union Carbide, Ford Motor Company, British Petroleum, Blackwater, Walmart, Pinkteron, Standard Oil, Enron, and on and on and on.
The laws and regulations only protect the existing companies--Sarbox has hurt smaller companies and startups more than its protected anyone else.
~
Look, we're on the same side here. You just need to make arguments that don't blindly ignore reality and history. If you want to continue this discussion, hit me up on email with your best rhetoric. Let's quit taking up space on this thread.
That is one of the chief problems with large corporations: the people making the decisions are so far removed--insulated--from the consequences that they feel no responsibility for the negative effects on other entities.
The numerous examples of corruption, evil, and greed in large corporations should come as no surprise--it's built-in to the system.
And when someone points it out, there's one after another of people like yourself who exhibit a deafening WHOOSH with yet another, "but, but, but...money!" The single-mindedness is astounding.
They can be. Say there are 1000 equal shareholders in a company, and they make up .01% of society. If they do $10,000,000 in damage to society they discount that by .01%, and just need to earn $1,000 as a company, one dollar each, in exchange in order for it to be "rational".
For A&E to work well needs A&E departments located within easy reach of an incident and to be staffed by people who are kept in practice and will operate immediately if required, instead of doing financial admin first.
Now this list of factors means you can always make money by shutting down A&E departments as they cannot do anything but operate at a loss.
However no matter how much money you make by doing so, you are increasing your own accidental mortality risk.
We are all poorer--as a society--when some people profit at others' suffering.
You are demonstrating precisely the problem mentality that I am pointing out. Please wake up.
What do you propose to measure it in then? There are situations where you can save X number of lives by doing Y hours of labor, and there are cases where Y is so much larger than X that you have to say no, we aren't going to do that. How do you propose to make that kind of decision without using some comparable measure of value?
Nobody can claim that the current situation is optimal. It's kind of terrible. But it isn't because we measure things using money.
In such a situation, the choice should be made without metrics and comparisons--it's a matter of right vs. wrong. That is what is missing from the decision-making process: morality.
Imploring everyone to just be more moral isn't going to fix the systemic problems.
Don't get me wrong, I completely agree their lobbying is against the general interest of society, but it was the government that was elected to protect the interests of the public, and failed.
It was not a punctual failing of the moralities of the companies, it is a consequence of a system that stimulates them to do it and given them the power to do it successfully.
In this case the interests of the private company prevailed. Notice that the proposal of not banning CFCs in medicinal applications was also a decision to be made by the government, but the pressure from the other side was simply not enough.
Best chair name ever.
"The current state of patents and patent litigation in this country is shameful," said Cuban, owner of the Dallas Mavericks. "Silly patent lawsuits force prices to go up while competition and innovation suffer. That's bad for consumers and bad for business. It's time to fix our broken system, and EFF can help. So that's why part of my donation funds a new title for EFF Staff Attorney Julie Samuels: 'The Mark Cuban Chair to Eliminate Stupid Patents'."
https://www.eff.org/press/releases/eff-patent-project-gets-h...
This raises so many opportunities!
Patents are absolutely fundamental to the way medical research works today, especially the search for new treatments and medicines. That’s a tricky thing to mess around with. There are obvious problems. There are speculations about what fixing them could yield on one hand. In the other hand is a massive industry producing a lot of technology, science and actual treatments for diseases.
What seems (to me) to be missing in these debates is some humility about knowing the answers. While our culture is speeding through “movements” at a higher rate than ever before, we still tend to approach these big political/philosophical/economic issues with an early modern/modernist perspective. Our most popular philosophers for these matters are old dead guys who liked to think of big organic things like society and civilization in terms of how we should set things up if we had snapped into existence today, a clean slate. That’s a fairly pompous perspective.
In any case, I think the patents and intellectual property problem is a very tricky one to solve. Experiment with possible solutions is almost impossible. IP legally mimics regular property in a metaphor-like way. That metaphor is proving increasingly inaccurate. At the same time, we have huge pieces of our economy and whatnot built on it. At the same time our legal systems are showing signs that they might need a reimagining. Many of our legal constructs such as ‘legal entity’ or ‘jurisdiction’ are being pushed to extremes, and metaphors eventually break. Does the concept of a company legally approximating a person hold up when we have impenetrable layers of ownership across jurisdictions? Does the metaphor fray?
Patents are essential to the current business model of pharmaceutical companies -- they are necessary to guarantee a return on investment, but the portion of the investment devoted to R&D and clinical trials is dwarfed by the marketing.
If you look at the big companies you can divide their budget into 4 big
categories. One is R&D, one is marketing and administration; the
other is profits, and the other is just the cost of making the pills and
putting them in the bottles and distributing them. The smallest of
those is R&D. The smallest is Research and development. Profits
usually are about the same. Marketing and Administration is
more than twice as much.
That doesn't mean that there aren't gains to be had from a moderate version of that approach. I just don't think there is a theoretical framework capable of telling us the right answer in economics. Economics is at its best more similar to zoology than physics. Zoology will not accurately predict the way species and populations will react to a reduction in available water sources or the introduction of new species. On the rare occasions that it's feasible, repeating the experiment will rarely yield the same result.
> Patents are essential to the current business model of pharmaceutical companies -- they are necessary to guarantee a return on investment, but the portion of the investment devoted to R&D and clinical trials is dwarfed by the marketing.
Your comment contradicts itself.
If, as you say, patents are "necessary to guarantee a return on investment", then it doesn't matter if the R&D is the largest cost or not, because the company won't produce a profit (and therefore won't produce new drugs) without the patent.
In fact, it's quite reasonable to think that both massive marketing and time-limited protection from competition are necessary to ensure enough of a return to guarantee continued investment into the industry. It doesn't have to be one or the other.
Patent protection for drugs (and chemicals in general) was weak or non-existent in Europe until the 1970's, and despite that there was research and development of drugs.
I think the system we have today is largely driven by the patent mechanism, and while not terrible, could be made better by tweaking the patent system.
The government sponsored monopoly is supposed to guarantee a return on the R&D, not guarantee the return on Superbowl ads for another erectile dysfunction drug.
I would agree on that had we not recently had a massive change away from products and property and into service and contracts. Citizens do not own cars, coffee machines, or books. They house devices which they have a licensed permission to use, and it is contract law that rules and not property law.
Patents could also easily be redefined as a contract between state and inventor, where inventor provide knowledge in return for privilege and protection. It doesn't change anything for the economy, but it would remove the need to talk about property and it would imply that the contract could be changed in the future.
Could you explain how property law comes into effect in this case? If it does not, why could patents not be treated in the exact same and equal way.
Edit : Here's a description of the issue, which is a bit different than my recollection
Interesting. That particular patent was owned by Hughes Electronics, though, not Boeing [1]. EDIT: Apparently in 2000 Boeing acquired that division of Hughes Electronics [2] but the transfer of ownership of the patent was never recorded in the USPTO.
The patent expired in 2012 because the owner didn't pay the required "maintenance fee," which is a statutory fee that must be paid every few years to keep a patent alive [3]; see the end of the document to which you linked.
[1] http://assignment.uspto.gov/#/search?adv=patNum%3A6116545&so...
[2] http://en.wikipedia.org/wiki/Hughes_Aircraft_Company#Hughes_...
[3] http://www.uspto.gov/patents-maintaining-patent/maintain-you...
https://en.wikipedia.org/wiki/Edward_Belbruno
Belbruno has been an innovative researcher otherwise, but it's hardly an excuse to monopolize math theorems or their computational applications.
It's unfortunate that the Patent Office can't ban trolls who have abused the system.
I agree with you on one hand but on the other is it impossible for a person to reform and later want a patent to protect their new creation? I'd just like to see the whole system overhauled or maybe even removed in some ways.
Help make a difference!
Or, even worse, do license agreements typically include language that says the licensee agrees to continue to pay royalties even if the patent is later found to be invalid? I can see someone being strong armed into signing an agreement like that.
Apparently at some point an American producer licensed the patent for a mouthwash for a percentage of sale – I think it was Listerine, but can't find this story on Wikipedia right now. A decade or two later, the patent ran out. Anybody could now copy the formula without royalties. Except: the original licensor sued his american licensee for continued royalty payments. They won, because the initial contract never specified an end to the arrangement when the patent expired.
Source: http://law.justia.com/cases/federal/district-courts/FSupp/17...
This doctrine is being challenged at the Supreme Court currently, in Kimble v. Marvel:
http://www.scotusblog.com/case-files/cases/kimble-v-marvel-e...
To your other question, though, no, a license that tried to force continued payments despite invalidation would be very atypical. In fact, to do so is currently per se unenforceable. (Note, though, that the Supreme Court might allow for some gray area in this rule in the coming months).
And for the 16 companies that did settle, the verdict may not change anything. In most cases, these licensing agreements have language that makes them nearly impossible to get out of, no matter what happens with the patent later on. This week, we heard back from a spokesman from one of the companies that chose to settle.
The spokesman wrote in an email, quote, "We were hit hard by this lawsuit. Infringement on our part seemed completely bogus, but we could not afford to fight it. Even with the settlement, we were forced to lay off employees. We are still--" and "still" is in all caps-- "still paying out on the settlement agreement. We were unaware that the patent had been invalidated. We will be contacting our attorney to see what recourse we may have."
If the only remaining thing is a fee to not sue for something they objectively have no rights to, that doesn't sounds like a proper exchange to me. But of course I'm not a lawyer.
Did the other person win a case about their use, or did they actually get the patent thrown out? Could make a big difference when it comes to others.
And typically you get a royalty for that company's entire portfolio of patents. So even if a few are invalid there are bunch more.
Software is a different beast, simply because the vagueness you can express in a software patent can be so general that it covers use cases almost retroactively.
Software patents should be extremely specific, regular patents work for the most part.
The current system is in everyone's worst interest. Getting there first shouldn't be worth as much as being able to provide an excellent quality of product or service - software or otherwise. You certainly shouldn't be able to hold up all of humanity's progress for the entire future because you can claim priority.
I mean, if I could, I can think of a few I'd go after before finishing this very sentence. Unfortunately, it turns out, I don't have that authority.